Blog Traffic

September 4, 2004

More on Blakely's retroactivity

In Morris v. US, 2004 WL 1944014 (C.D. Ill. Sep 01, 2004), District Judge Jeanne Scott walks through the various steps of Blakely retroactivity analysis as carefully and as thoroughly as any court to date. Unlike the garbled ruling in Garcia v. US, 2004 U.S. Dist. LEXIS 14984 (NDNY Aug. 4, 2004), Judge Scott's analysis in Morris rightly reflects that Teague's retroactivity analysis only applies to "new" rules, and she comes to the conclusion that Blakely is a "new" rule despite the fact that it is arguably only an application of Apprendi. (See some background on these issue in the post and comments here.)

However, at the last step of her Teague retroactivity analysis, Judge Scott falls prey to a mistake common to many considering retroactivity by suggesting that the Supreme Court's decision in Schriro conclusively forecloses the issue: "Schriro teaches, however, that such a right cannot be applied retroactively because it is not of the type fundamental to the concept of ordered liberty." But, as I have stressed repeatedly before here and here, in Schriro there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion in Schriro); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely.

TrackBack

Comments

It seems to me that Blakely may be both procedural and at the same time substantive depending upon the facts of a particular case. I think it rests entirely upon the question of whether or not it prohibits punishment of particular acts by particular defendants. In fraud and money laundering cases it would seem that absent a jury verdict, or admission, on the amount of money involved, Blakely should place those defendants beyond the ability of the judicial fact finding process and guideline imposed sentence. In those cases the amount of money involved really seems like elements of a greater offense rather than sentencing factors. Ring citing Apprendi clearly teaches that regardless of how these things are classified is not determinative of "who decides", judge or jury. And who decides, and by what standard, is what is important in Blakely. In Schriro we are told Ring only announces a new procedural rule and is not applicable on collateral review. What we're not told is the reasoning in Apprendi, Ring, and Blakely clearly can be substantive depending on what type of case and factors are involved. Am I thinking correctly about this?

Posted by: J Dahnke | Sep 4, 2004 6:58:45 PM

For the reasons set forth below, Blakely should not be applied retroactively.
The question will turn on whether Blakely is a “new rule.” If Blakely is a new procedural rule it would not apply retroactively. [See Schivo v. Summerlin, 542 U.S. ___, 124 S.Ct. 2519 (2004) (holding that Ring v. Arizona, 536 U.S. 584 (2002) applying Apprendi to Arizona death penalty cases, overruling Walton v. Arizona, 497 U.S. 639 (1990), was a procedural rule not applied retroactively)] Blakely does not “[implicate] the fundamental fairness and accuracy of the criminal proceeding,” any more than did Ring . As the Supreme Court acknowledged in Teague v. Lane, 489 U.S. 288, 302, rehrg denied 490 U.S. 1031 (1989):
“It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. * * * * To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” (Citations omitted.)
Ring, although it was foreshadowed by Apprendi, expressly overruled a prior decision of the U.S. Supreme Court. Thus, Ring was clearly a “new rule.” Apprendi has also been recognized as a new rule not applied retroactively under Teague on a 28 U.S.C. §2255 motion [United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.), cert. denied, 519 U.S.845 (2002)]. The case with respect to Blakely is not nearly as clear. Blakely defined the term “maximum statutory” as used in Apprendi, consequently it cannot be said with any degree of conviction that Blakely broke new ground. Blakely did to some extent impose a new obligation on the States and the Federal Government by extending the cases to which Apprendi applied so that factor tends to support a “new rule” determination. On the question of whether the result was dictated by prior precedent, the following language from the majority opinion is instructive [Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 2537 (2004)].
“Our precedents make clear, however, that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See Ring, supra, at 602 (‘“the maximum he would receive if punished according to the facts reflected in the jury verdict alone”’ (quoting Apprendi, supra, at 483)); Harris v. United States, 536 U. S. 545, 563 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488 (facts admitted by the defendant). In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”
Were the Analysis to stop at that point, the logical conclusion would probably be that Blakely did not establish a “new rule” as defined in Teague and would apply retroactively to at least the date that Harris and Ring were decided (June 24, 2002). Analysis does not, however, stop at that point. As the below quote from Lambrix v. Singletary, 520 U.S. 518, 538 (1997) indicates, the Supreme Court recognizes the understanding of those courts bound to follow Supreme Court precedent of how clearly Ring and Harris foreshadowed the result in Blakely must be considered.
“But the Teague inquiry—which is applied to Supreme Court decisions that are, one must hope, usually the most reasonable interpretation of prior law—requires more than that. It asks whether Espinosa was dictated by precedent—i.e., whether no other interpretation was reasonable. We think it plain from the above that a jurist considering all the relevant material (and not, like Justice STEVENS' dissent, considering only the material that favors the Espinosa result) could reasonably have reached a conclusion contrary to our holding in that case. Indeed, both before and after Lambrix's conviction became final, every court decision we are aware of did so.”
Since Harris and Ring were decided, the Courts of Appeals have unanimously held that the statute, not the USSG, provided the measuring “statutory maximum” sentence. [United States v. Newton, 326 F.3d 253 (1st Cir. 2003); United States v. Dukagjini, 326 F.3d 45 (2nd Cir. 2003); United States v. Waters, 313 F.3d 151 (3rd Cir. 2002); United States v. Hopkins, 77 Fed.Appx 688 (4th Cir. 2003 (unpublished decision); United States v. Floyd, 343 F.3d 363 (5th Cir. 2003); United States v. Hughes, 369 F.3d 941 (6th Cir. 2004); United States v. Merritt, 361 F.3d 1005 (7th Cir. 2004); United States v. Francis, 367 F.3d 805 (8th Cir. 2004); United States v. Plancante-Alvarez, 366 F.3d 1058 (9th Cir. 2004); United States v. Bennett, 329 F.3d 769 (10th Cir. 2003); United States v. Ortiz, 318 F.3d 1030 (11th Cir. 2003); United States v. Pettigrew, 346 F.3d 1139 (D.C. Cir. 2003).] In addition, since Apprendi, every decision of the highest court of states having determinate sentencing, with the exception of Kansas [State v. Gould, 23 P.3d 801 (Kan. 2001). Interestingly, the Kansas Supreme Court followed United States v. Norby, 225 F.3d 1053 (9th Cir. 2000), which was later overruled by United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc)], reached a similar understanding [Wright v. State, 46 P.3d 395 (Alaska App. 2002); Altman v. State, 852 So.2d 870 (Fla. 2003); State v. Lucas, 548 S.E.2d 712 (N.C. 2001); State v. Diltz, 82 P.3d 563 (Ore. 2003); State v. Gore, 21 P.3d 262 (Wash. 2001].
It may have been clear to a majority of the Supreme Court that its precedents, i.e., Harris and Ring, established the rule that the statutory maximum was measured before not after the judge found additional facts, it certainly was not clear to any other court, save one. The Supreme Court has also recognized the principle that simply because a court believes its decision is dictated by earlier precedents does not necessarily control.
“But the fact that a court says that its decision is within the "logical compass" of an earlier decision, or indeed that it is "controlled" by a prior decision, is not conclusive for purposes of deciding whether the current decision is a "new rule" under Teague. Courts frequently view their decisions as being "controlled" or "governed" by prior opinions even when aware of reasonable contrary conclusions reached by other courts.” [Butler v. McKellar, 494 U.S. 407, 415 (1990)]
The unanimous position taken by the U.S. Courts of Appeal and the nearly unanimous understanding expressed by State appellate courts, while reasonable minds may differ, makes it extremely difficult to say with any degree of conviction that Blakely did not establish a “new rule.” This result is even more compelling than other cases in which the Supreme Court has determined, based on lower court “understandings” that a “new rule” was pronounced. [See e.g., Caspari v. Bohlen, 510 U.S. 383, 393–95 (1994) (one Court of Appeals and two State courts held one way and one Court of Appeals and two State courts held the other); Butler v. McKellar, supra (a split between two circuits).]
Given the requirement of 28 U.S.C. §2254(d)(1) that the State court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” giving retroactive effect would be especially troublesome in reviewing state convictions in habeas corpus proceedings. It takes a quantum leap in logic to state that prior to Blakely it was clearly established that statutory maxima were determined by the range contained in a set of sentencing guidelines and not the maxima for criminal acts specified for the offense in the statute creating the offense. While the highest court of a state is certainly free to determine if Blakely should be applied retroactively and permit a collateral attack on a sentence for a Blakely error under state habeas corpus procedure, compelling that result under §2254 is a different question.

Posted by: Thomas J. Yerbich | Sep 7, 2004 1:58:26 PM

Re: Dretke vs. Handley, Supreme Court decided May, 2004, in conjunction with Blakely vs. Washington, what is the proper avenue for a federal prisoner to address his actual innocence of the conviction for a non-existing crime and/or actual innocence of the enhanced portion of the sentence not affected by Blakely in the 8th Circuit. All sentencing guideline issues can only be addressed by a direct appeal under 18 USC 3742(a)(1)(2) as this was the exclusive avenue to address sentencing guidelines and petitioner time-barred.

Posted by: Marcie | Oct 30, 2004 5:54:06 PM

I am a devoted sister in constant correspondence with my brother who was wrongfully convicted and sentenced. I assist him as best I can in researching options for an appeal. Our question is Blakely vs. Washington has they're been any cases retroactive as far back as 1986?
Thank you,
Debra

Posted by: Debra M. Gracia | Oct 9, 2005 11:24:30 PM

I have been helping my boyfriend as much as I can with his case. He encounter a pretty extreme sentence and is seeking some type of relief from it. In all the information about Blakely vs. Washington I cannot figure out if it is retoactive and if so how far back, and would this apply to him if he recieved his snetence in 2002 and decision on his direct appeal was in 2003. Please give me some direction on this.

Posted by: Denice | Dec 1, 2005 10:05:55 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB